Former NFL punter Chris Kluwe, who played for the Minnesota Vikings until the Vikings released him before the start of the 2013 NFL season, recently made headlines when he claimed that the Vikings cut him because of his well-publicized support for gay rights in Minnesota, not because of his football performance. It’s difficult to research this question because there are 32 NFL teams and thousands of former NFL players, but this has to be a rare, if not the only, instance of an NFL player asserting that his team released him under circumstances that make it sound an awful lot like a wrongful termination case. Kluwe has stated that he hopes litigation over his release can be avoided, but what exactly would his legal rights be? I can’t analyze how Minnesota state law would apply to this question, but I can look at it from a federal legal angle.

Kluwe likely has no federal legal rights because federal law currently does not recognize sexual orientation as a protected characteristic. Federal law prohibits discrimination based on race, sex, religion, age, disability, and national origin. It’s also illegal under federal law for an employer to fire an employee because that person opposes workplace discrimination along those lines. But even if federal law did recognize sexual orientation as a protected characteristic, that probably wouldn’t help Kluwe because he was taking a political, not workplace, stand regarding gay rights. Moreover, Kluwe would probably be considered an independent contractor, not an employee, of the Vikings. The federal civil rights/employment laws only protect employees, not independent contractors.

Okay, so Kluwe was making a political point. That’s as American as can be; it therefore must be illegal for a private business to terminate someone because of that person’s politics, right? Nope. While every U.S. citizen is entitled to the rights guaranteed by the First Amendment, including the right to free speech, free speech rights can only be asserted against the government. The right to free speech does not apply to private settings that lack government involvement, such as your living room or a private business. Thus, for private employers and businesses, people have no First Amendment right to say or do whatever they wish. Only government employees are protected from retaliation for exercising their free speech rights.

I’m sure that if Kluwe sues the Vikings he’ll assert some sort of breach of contract claim. I can’t analyze that because I don’t have a copy of Kluwe’s Vikings contract. But there’s enough prestige and publicity waiting in the wings on this one that a team of lawyers will likely bend over backwards to find a way to bring a meritorious lawsuit against the Vikings if Kluwe so chooses.

No matter how Kluwe comes at the Vikings in a lawsuit, the ultimate question will always be: Why did the Vikings draft a punter in 2013 and then replace Kluwe with that rookie punter? That of course is what cases like this always come down to – Why did the defendant do what it did? Was it for legitimate reasons or because of spite or ill-will? The Vikings will always maintain that they released Kluwe solely for football performance reasons, i.e., the punter they drafted was better than Kluwe, and NFL teams rarely keep two punters on the roster, so Kluwe was released. Kluwe will argue the opposite, that his football performance was fine and it was his public support of gay rights that cost him his Vikings position. If nothing else, such a lawsuit should provide a rare and fascinating deep look into how an NFL team makes final roster decisions.

Throughout the last decade, Congress became increasingly concerned that federal courts were making it nearly impossible to sue for disability discrimination. Basically, under the federal courts’ strict reading of the ADA almost no one was considered “disabled” and thus protected by the ADA. Federal courts were consistently dismissing disability discrimination claims before trial based on plaintiffs’ failure to prove that they were “disabled.”

The concerns regarding the courts’ increasingly narrow definition of “disabled” led Congress to pass the Americans With Disabilities Act Amendments Act (“ADAAA”) in 2008. The ADAAA went into effect on January 1, 2009. It governs all disability/employment situations that have arisen since that date. Congress intended the ADAAA to reinstate the broader definition of “disabled” under federal law that had existed when the original ADA was passed in 1990.

Because of the prolonged nature of disability discrimination claims, claims under the ADAAA (which only applies to events occurring after December 31, 2008) have just begun appearing in court decisions within the last two years or so. That’s enough time to begin discerning some of the ADAAA’s effects. One type of claim, “regarded as” or “perceived disability,” will very clearly have a tremendous impact on the employee side of disability discrimination.

“Regarded as” or “perceived disability” claims permit employees to prove that they are disabled by demonstrating that their employer regarded them as having a mental or physical impairment, even if the employee has no physical or mental impairment at all. Employees arguing a “perceived disability” claim do not need to show that their physical or mental impairment substantially limits a major life activity. But, to avoid turning every minor or temporary physical or mental condition into a disability discrimination case, the ADAAA excludes from “regarded as” or “perceived disability” coverage impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

Disability discrimination cases require legal analysis of federal and state statutes, agency regulations, and court decisions. I can help you with any employment law or labor law questions that you might have. Please feel free to contact me for a free initial consultation about employment law or labor law.

Under federal overtime law, a claim must be brought within two years of the overtime violation unless the employee can prove that the employer willfully failed to pay overtime, in which case the statute of limitations is extended to three years. Employees receive a separate two- or three-year time limit for each overtime violation. Only claims for violations that occurred more than two (or perhaps three) years before suit was filed are invalid.

Many employers include provisions in employment contracts that purport to reduce the time limit for filing an overtime claim to less than two years. Federal courts do not honor such provisions. They consider employer attempts to shorten the overtime statute of limitations to be impermissible waivers of employee rights under federal overtime law.

In an earlier post I discussed the general rules against waiver of overtime rights. Early in the history of overtime law, the United States Supreme Court was concerned that employers would try to circumvent the law’s requirements and gain a competitive advantage by demanding that employees waive their overtime rights. Not only that, but waivers of overtime rights would also nullify the very purpose for passing such a law. That same reasoning applies to employer attempts to restrict employees to a shorter overtime statute of limitations.

The Americans with Disabilities Act prohibits employment discrimination because of an actual or perceived disability. One of the ADA’s requirements mandates that employers reasonably accommodate individuals with
disabilities. A reasonable accommodation is not required if if would unless cause the employer undue hardship. One type of reasonable accommodation is job reassignment to a vacant position.

As with any accommodation request under the ADA, employees requesting reassignment must initially establish that they are an “individual with a disability” as that term is defined by federal law. Then, if a disability is established, job reassignment must be a reasonable accommodation. It not always is. Job reassignment is a necessary disability accommodation only if the employer has available a vacant equivalent position for which the disabled employee is qualified. The employee seeking reassignment must have the requisite skill, experience, education, meet other job-related requirements of the position, and be able to perform the essential
functions of the new position with or without reasonable accommodation.

There are other limits to job reassignment as a disability accommodation. Employers do not need to move employees out of existing positions to accommodate a disability. Nor do they need to create a new job for disabled employees seeking reassignment. Further, the proposed reassignment need only be roughly equivalent to the employee’s current position in terms of pay, status, benefits, or location. The ADA doesn’t mandate that employers give disabled employees a higher-level position than the one they currently hold.

This is not an issue to be taken lightly. Money damages do not automatically flow from a determination that a defendant violated the law. If Point A is the defendant’s liability and Point C is your injuries and damages, you need to have a good argument for Point B, which is causation, or the connection between the defendant’s liability and your injuries and damages.

The Iowa Court of Appeals’s recent decision in Stutzman v. West Des Moines OB/GYN illustrates this concept in tragic fashion. Stutzman was a wrongful death case involving Julie Stutzman’s death from cancer. Her estate and surviving family claimed that her doctor committed malpractice in the manner in which the doctor handled some of Julie’s earlier doctor visits. The plaintiffs argued that, had Julie’s doctor properly handled and responded to earlier communications from Julie, Julie’s cancer would have been detected sooner and she would have had a higher chance of survival.

The Stutzman plaintiffs lost because they could only prove one aspect of malpractice against Julie’s doctor and clinic — A charting error. But they were unable to establish that the charting error made a difference in the course of Julie’s subsequent cancer diagnosis and death, i.e., causation. So Stutzman is a recent, good example of the importance of having sufficient proof of causation to connect the defendant’s wrongdoing to your harm. Even though Julie’s family proved that her doctor did something wrong, they could mot prove that the doctor’s error harmed Julie, and they lost their case.

It is routine for opposing counsel in all types of cases to request this information as part of their pretrial investigation. They want to know if you’ve posted anything anywhere online that contradicts any part of your claim. They also want to know if there are any photos or videos of you doing things that you shouldn’t be doing or claim that you can’t do.

Judges increasingly allow opposing counsel access to this information, even if you’ve marked it as private in your online profile or settings. To judges, your online musings, pictures, and video are as much fair game in a lawsuit as would be a diary, journal, scrapbook with photos, etc. So odds are good opposing counsel will get this information whether you like it or not.

And that only covers opposing counsel’s attempts to come in through the front door. As long as opposing counsel doesn’t communicate directly with you, they’re also free to view anything that you’ve left publicly available. So opposing counsel may be poking around your internet persona and you won’t even know it until it’s too late.

The moral of the story is to avoid putting anything online that your common sense tells you will be used against you by opposing counsel. Chances are good counsel will eventually get that information somehow. And they’re guaranteed to try to use it.

As discussed in other posts here and here, Iowa Code 730.5 allows private employers to conduct workplace drug and and alcohol testing on current and prospective employees. Iowa Code 730.5 gives employers the power to demand drug and alcohol testing and issue discipline, including termination, against employees who refuse to submit to testing. This employment law raises a few questions. First, can you ever legitimately refuse a drug test, such that your employer cannot discipline you for doing so? Second, what exactly is a “refusal” under Iowa’s drug and alcohol testing law?

The only way that an employee can safely refuse a drug or alcohol test is if the test is not lawful or valid, meaning that the employer has no right to demand the test. For example, I’ve noted that many employers are improperly insisting on post-injury testing under circumstances in which Iowa Code 730.5 doesn’t authorize such a test. That’s an example of a situation in which, because the requested test is illegal, the employee can legally refuse the test without disciplinary repercussions. But except for situations involving an illegal test request, employees generally don’t have a right to refuse testing and expose themselves to discipline if they do.

Determining whether there’s a “refusal” is a bit trickier. Obviously, directly refusing the test, walking out on the test, or not showing up for the test are clear testing refusals. There’s a gray area though between such overt refusals and lesser forms of possible refusal. Neither Iowa Code 730.5 nor Iowa’s appellate courts have addressed the issue of whether anything less than a categorical refusal can constitute a refusal to submit to an employee drug or alcohol test.

I’m currently litigating a case involving a less-than-obvious refusal. My position is that an “implied refusal” cannot be determined by arbitrary time limits or the like. Instead, a court has to look at the employee’s actions regarding the test and all of the surrounding circumstances to determine whether the employee has implicitly refused a drug or alcohol test. This will likely be a question that is later answered by the Iowa Court of Appeals or the Iowa Supreme Court.